As filed with the Securities and Exchange Commission on
October 30, 2020
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACNB CORPORATION
(Exact name of Registrant as specified in its charter)
|
Pennsylvania
(State or other jurisdiction of
incorporation or organization)
|
23-2233457
(I.R.S. Employer
Identification Number)
|
16 Lincoln Square
Gettysburg, Pennsylvania 17325
(717) 334-3161
(Address, Including Zip Code, and Telephone
Number, Including Area Code, of Registrant’s Principal
Executive Offices)
James P. Helt
President and Chief Executive Officer
ACNB Corporation
16 Lincoln Square
Gettysburg, Pennsylvania 17325
(717) 334-3161
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
With copies to:
Erik Gerhard, Esquire
Bybel Rutledge LLP
1017 Mumma Road, Suite 302
Lemoyne, Pennsylvania 17043
(717) 731-1700
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this
registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ¨
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities
Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following
box. ¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
|
Large accelerated filer ¨
Non-accelerated filer ¨
|
Accelerated filer x
Smaller reporting company x
Emerging growth company ¨
|
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the
Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be
registered |
Amount to be
registered(1)(2) |
Proposed
maximum
offering price per
unit(1)(2)(3) |
Proposed maximum
aggregate offering
price(1)(2)(3) |
Amount of
registration fee(4) |
|
Common Stock, $2.50 par value |
|
|
|
|
|
Preferred Stock, $2.50 par value |
|
|
|
|
|
Debt Securities (5) |
|
|
|
|
|
Warrants |
|
|
|
|
|
Units |
|
|
|
|
|
Total |
$100,000,000 |
$100,000,000 |
$100,000,000 |
$10,910.00 |
|
(1) |
An unspecified aggregate initial offering price and number of
securities of each identified class is being registered as may from
time to time be offered at unspecified prices. Also includes an
indeterminate number of shares of voting common stock, preferred
stock, warrants, and units, and such indeterminate principal amount
of senior debt securities and subordinated debt securities as may
be issued by the Registrant upon exercise, conversion or exchange
of any securities that provide for such issuance, or that may from
time to time become issuable by reason of any stock split, stock
dividend or similar transaction, for which no separate
consideration will be received by Registrant. In no event will the
aggregate offering price of all types of securities issued by the
Registrant pursuant to this registration statement exceed
$100,000,000. Any securities registered hereunder may be sold
separately or together with other securities registered
hereunder. |
|
(2) |
Pursuant to General Instruction II.D of Form S-3,
information as to each class of securities to be registered is not
specified. |
|
(3) |
Estimated for the sole purpose of computing the registration
fee pursuant to Rule 457(o) under the Securities Act of
1933, and exclusive of accrued interest and dividends, if any. |
|
(4) |
Calculated pursuant to Rule 457(o) under the
Securities Act, based on the maximum aggregate offering price of
all securities registered hereunder. |
|
(5) |
Debt Securities may be offered hereunder in one or more series
of senior or subordinated debt securities. |
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall
become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the Registration
Statement filed with the Securities and Exchange Commission is
declared effective. This prospectus is not an offer to sell these
securities and is not a solicitation of an offer to buy these
securities in any state or other jurisdiction where the offer or
the sale is not permitted.
Subject to completion, dated October 30, 2020
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell, from time to time, in one or more offerings,
any combination of the securities described in this prospectus. The
total aggregate amount of securities offered by us under this
prospectus will not exceed $100,000,000. We may offer these
securities separately or together, in separate series or classes
and in amounts, at prices and on terms described in one or more
prospectus supplements. The debt securities, preferred stock,
warrants and units may be convertible or exercisable or
exchangeable for debt or equity securities of the Company.
This prospectus provides a general description of the securities we
may offer. Each time we sell securities, we will provide the
specific terms of the securities offered in a supplement to this
prospectus. This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement. The prospectus
supplement and any related free writing prospectus may also add,
update, or change information contained in this prospectus. Please
read this prospectus, the applicable prospectus supplement, and any
free writing prospectus, as well as any documents incorporated by
reference in this prospectus or any prospectus supplement,
carefully before you invest in any of our securities.
Our common stock is quoted on The Nasdaq Capital Market under the
symbol “ACNB.” On October 29, 2020, the closing price of our
common stock was $21.59 per share. You are urged to obtain current
market prices of our common stock. Each prospectus supplement will
indicate if the other securities that may be offered thereby will
be listed on any securities exchange.
Investing in our securities involves risk. You should carefully
review and consider the risks and uncertainties described under the
heading “Risk Factors” beginning on page 4 of this prospectus and
set forth in the documents incorporated by reference into this
prospectus and the applicable prospectus supplement or free writing
prospectus before making any decision to invest in our
securities.
Neither the Securities and Exchange Commission nor any state
securities commission or any other regulatory body has approved or
disapproved of these securities or determined that this prospectus
is truthful or complete. Any representation to the contrary is a
criminal offense.
These securities are not savings accounts, deposits, or
obligations of any bank and are not insured by the Federal Deposit
Insurance Corporation or any other government agency.
The date of this prospectus is ________, 2020.
Table of
Contents
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement that we filed
with the United States Securities and Exchange Commission (the
“SEC”) using a “shelf” registration process. Under this process, we
may offer and sell, from time to time, in one or more offerings,
the securities described in this prospectus with a total aggregate
principal amount or initial purchase amount of $100,000,000. This
prospectus only provides a general description of the securities we
may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about
the terms of each offering.
We may also authorize one or more free writing prospectuses to be
provided to you that may contain material information relating to a
specific offering. The applicable prospectus supplement (and any
related free writing prospectus that we may authorize to be
provided to you) may also add, update or change information
contained in this prospectus or in the documents that we have
incorporated by reference into this prospectus. If there is any
inconsistency between the information in this prospectus and the
applicable prospectus supplement, you should rely on the
information in the prospectus supplement. This prospectus does not
contain all of the information set forth in the registration
statement and the exhibits to the registration statement. You
should carefully read this prospectus and the applicable prospectus
supplement and any related free writing prospectus together with
additional information from the sources described in “Where You Can
Find More Information” and “Incorporation of Certain Documents by
Reference” in this prospectus. You should not assume that the
information in this prospectus, the prospectus supplements, any
free writing prospectus or any document incorporated by reference
is accurate as of any date other than the date of the applicable
document.
You should rely only on the information provided or incorporated by
reference in this prospectus, any free writing prospectus and any
prospectus supplement, if applicable. We have not authorized anyone
to provide you with different information.
References to “we,” “us,” “our,” “ACNB” or the “Company” refer to
ACNB Corporation and its directly or indirectly owned subsidiaries,
unless the context otherwise requires. The term “you” refers to a
prospective investor.
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any accompanying prospectus supplement or free
writing prospectus and the documents incorporated by reference
herein or therein may contain forward-looking statements within the
meaning and protections of Section 27A of the Securities Act
of 1933, as amended (the “Securities Act”), and Section 21E of
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and are intended to be covered by the safe harbor provisions
for forward-looking statements in the Private Securities Litigation
Reform Act of 1995. We are including this statement for the purpose
of invoking those safe harbor provisions. Examples of
forward-looking statements include, but are not limited to,
(a) projections or statements regarding future earnings,
expenses, net interest income, other income, earnings or loss per
share, asset mix and quality, growth prospects, capital structure,
and other financial terms, (b) statements of plans and
objectives of management or the board of directors, and
(c) statements of assumptions, such as economic conditions in
the Company’s market areas. Such forward-looking statements can be
identified by the use of forward-looking terminology such as
“believes”, “expects”, “may”, “intends”, “will”, “should”,
“anticipates”, or the negative of any of the foregoing or other
variations thereon or comparable terminology, or by discussion of
strategy. Forward-looking statements are subject to certain risks
and uncertainties such as local economic conditions, competitive
factors, and regulatory limitations. Actual results may differ
materially from those projected in the forward-looking statements.
Such risks, uncertainties and other factors that could cause actual
results and experience to differ from those projected include, but
are not limited to, the following:
|
· |
the effects of governmental and fiscal policies, as well as
legislative and regulatory changes; |
|
· |
the effects of new laws and regulations, specifically the
impact of the Coronavirus Aid, Relief, and Economic Recovery Act,
the Tax Cuts and Jobs Act and the Dodd-Frank Wall Street Reform and
Consumer Protection Act; |
|
· |
impacts of the capital and liquidity requirements of the Basel
III standards; |
|
· |
the effects of changes in accounting policies and practices, as
may be adopted by the regulatory agencies, as well as the Financial
Accounting Standards Board and other accounting standard
setters; |
|
· |
ineffectiveness of the business strategy due to changes in
current or future market conditions; |
|
· |
future actions or inactions of the United States government,
including the effects of short- and long-term federal budget and
tax negotiations and a failure to increase the government debt
limit or a prolonged shutdown of the federal government; |
|
· |
the effects of economic conditions particularly with regard to
the negative impact of severe, wide-ranging and continuing
disruptions caused by the spread of Coronavirus Disease 2019
(COVID-19) and responses thereto on current customers and the
operation of the Company, specifically the effect of the economy on
loan customers’ ability to repay loans; |
|
· |
the effects of competition, and of changes in laws and
regulations on competition, including industry consolidation and
development of competing financial products and services; |
|
· |
the risks of changes in interest rates on the level and
composition of deposits, loan demand, and the values of loan
collateral, securities, and interest rate protection agreements, as
well as interest rate risks; |
|
· |
difficulties in acquisitions and integrating and operating
acquired business operations, including information technology
difficulties; |
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· |
challenges in establishing and maintaining operations in new
markets; |
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· |
the effects of technology changes; |
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· |
volatilities in the securities markets; |
| |
· |
the effect of general economic conditions and more specifically
in the Company’s market areas; |
|
· |
the failure of assumptions underlying the establishment of
reserves for loan losses and estimations of values of collateral
and various financial assets and liabilities; |
|
· |
acts of war, terrorism, or civil unrest; |
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· |
disruption of credit and equity markets; |
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· |
the ability to manage current levels of impaired assets; |
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the loss of certain key officers; |
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the ability to maintain the value and image of the Company’s
brand and protect the Company’s intellectual property rights; |
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continued relationships with major customers; and, |
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· |
potential impacts to the Company from continually evolving
cybersecurity and other technological risks and attacks, including
additional costs, reputational damage, regulatory penalties, and
financial losses. |
Because forward-looking statements are subject to risks and
uncertainties, actual results may differ materially from those
expressed or implied by these statements. The foregoing list of
important factors is not exclusive, and you are cautioned not to
place undue reliance on these statements. These statements speak
only as of the date of this document or, if made in any document
incorporated by reference, as of the date of that document. We do
not undertake to update any forward-looking statements, whether
written or oral, that may be made from time to time by or on our
behalf.
THE COMPANY
ACNB Corporation, headquartered in Gettysburg, Pennsylvania, is the
financial holding company for the wholly-owned subsidiaries of ACNB
Bank, Gettysburg, Pennsylvania, and Russell Insurance
Group, Inc., Westminster, Maryland. Our principal executive
offices are located at 16 Lincoln Square, Gettysburg, PA 17325,
telephone number 717-334-3161.
Originally founded in 1857, ACNB Bank serves its marketplace with
banking and wealth management services, including trust and retail
brokerage, via a network of community banking offices located in
the four southcentral Pennsylvania counties of Adams, Cumberland,
Franklin and York, as well as loan offices in Lancaster and York,
Pennsylvania, and Hunt Valley, Maryland. NWSB Bank, a division of
ACNB Bank, serves the local marketplace with a network of community
banking offices located in Carroll County, Maryland. FCB Bank, A
Division of ACNB Bank, serves the local marketplace with a network
of community banking offices located in Frederick County,
Maryland.
We maintain a website at https://investor.acnb.com. The information
on our website is not incorporated into this prospectus, any
prospectus supplement or any free writing prospectus.
RISK FACTORS
An investment in our securities involves risks. Prior to making a
decision about investing in our securities, you should carefully
read and consider the risks, uncertainties, and assumptions
discussed in our most recent annual report on Form 10-K as
supplemented by our quarterly reports on Form 10-Q and other
reports we file with the SEC from time to time, each of which is
incorporated herein by reference, and those specific risk factors
that may be included in the applicable prospectus supplement,
together with all of the other information presented in this
prospectus, any prospectus supplement and the documents we
incorporate by reference. The risks and uncertainties we have
described are not the only ones we face. Additional risks and
uncertainties not presently known to us or that we currently deem
immaterial may also affect our business and operations. The
occurrence of any of these known or unknown risks might cause you
to lose all or part of your investment in the offered
securities.
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, we intend to
use the net proceeds from the sale of any securities offered by us
for general corporate purposes. General corporate purposes may
include, among other purposes, contribution to the capital of ACNB
Bank to support its lending and investing activities; funding
acquisitions of other institutions or branches, if opportunities
for such transactions become available; repurchase of our capital
stock; redemption of outstanding debt securities or preferred
stock; and other activities that are permitted for financial
holding companies.
SECURITIES WE
MAY OFFER
The securities that may be offered from time to time through this
prospectus are:
|
· |
preferred stock, which we may issue in one or more series; |
|
· |
debt securities, which we may issue in one or more series; |
|
· |
warrants entitling the holders to purchase common stock or debt
securities; and, |
|
· |
units consisting of two or more of the above referenced
securities. |
We will describe in a prospectus supplement that we will deliver
with this prospectus, the terms of particular securities that we
may offer in the future. This prospectus may not be used to
offer or sell any securities unless accompanied by a prospectus
supplement. In each prospectus supplement we will include, if
relevant and material, the following information:
|
· |
type and amount of securities which we propose to sell; |
|
· |
initial public offering price of the securities; |
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original issue discount, if any; |
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· |
rates and times of payment of interest, dividends, or other
payments, if any; |
|
· |
redemption, conversion, exercise, exchange, settlement, or
sinking fund terms, if any; |
|
· |
ranking as to priority of payment upon liquidation or right to
payment of dividends; |
|
· |
voting or other rights, if any; |
|
· |
conversion, exchange or settlement prices or rates, if any,
and, if applicable, any provisions for changes to or adjustments in
the conversion, exchange, or settlement prices or rates and in the
securities or other property receivable upon conversion, exchange,
or settlement; |
|
· |
names of the underwriters, agents, or dealers, if any, through
or to which we or any selling securityholder will offer and sell
the securities; |
|
· |
compensation, if any, of those underwriters, agents or
dealers; |
|
· |
details regarding over-allotment options, if any; |
|
· |
information about any securities exchange or alternative
trading system on which the securities will be listed or
traded; |
|
· |
material United States federal income tax considerations
applicable to the securities; |
|
· |
any material risk factors associated with the securities;
and, |
|
· |
any other material information about the offer and sale of the
securities. |
In addition, the applicable prospectus supplement and any related
free writing prospectus may add, update, or change the information
contained in this prospectus or in the documents we have
incorporated by reference.
DESCRIPTION OF
COMMON STOCK
The following is a description of our common stock, certain
provisions of our articles of incorporation and bylaws and certain
provisions of applicable law. The following is qualified by
applicable law and by the provisions of our articles of
incorporation and bylaws, copies of which have been filed with the
SEC and are also available upon request from us. You should read
the prospectus supplement, which will contain additional
information and which may update or change some of the information
below.
General. Our articles of incorporation provide that
we may issue up to 20,000,000 shares of common stock, par value
$2.50 per share.
Voting Rights. The holders of our common stock
possess exclusive voting rights. Common shareholders elect our
board of directors and act on such other matters as are required to
be presented to them under Pennsylvania law, applicable SEC rules,
the rules promulgated by The Nasdaq Stock Market or our
articles of incorporation and bylaws or as are otherwise presented
to them by the board of directors. Each holder of our common stock
is entitled to one vote per share and does not have any right to
cumulative voting in the election of directors. At any meeting of
the shareholders, the holders of a majority of our outstanding
stock then having voting rights, present in person or by proxy,
shall constitute a quorum for all purposes. If a quorum exists,
action on a matter (other than the election of directors) by a
voting group is approved if the votes cast within the voting group
favoring the action exceeds the votes cast opposing the action,
unless otherwise provided by the Company’s articles of
incorporation or bylaws. Certain matters require the affirmative
vote of the holders of at least 75% of the outstanding shares of
our common stock.
Dividend Rights. Subject to the rights that the
Company may confer on any series of outstanding preferred stock and
all other classes of stock at the time outstanding having prior
rights as to dividends, the holders of common stock are entitled to
receive ratably such dividends, if any, as may be declared from
time to time by the board of directors, subject to certain
prohibitions on our ability to pay dividends under Pennsylvania
corporate law.
In addition, as a financial holding company, any dividends paid by
us are subject to various federal and state regulatory limitations
and also may be subject to the ability of ACNB Bank to make
distributions or pay dividends to us. ACNB Bank is also subject to
various legal, regulatory and other restrictions on its ability to
pay dividends and make other distributions and payments to us. Our
ability to pay dividends is limited by minimum capital and other
requirements prescribed by law and regulation. Furthermore, we are
generally prohibited under Pennsylvania corporate law from making a
distribution to our shareholders to the extent that, at the time of
the distribution, after giving effect to the distribution, we would
not be able to pay our debts as they become due in the usual course
of business or our total assets would be less than the sum of our
total liabilities plus (unless the articles of incorporation
permits otherwise) the amount that would be needed, if we were to
be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of any shareholders who may
have preferential rights superior to those receiving the
distribution. In addition, financing arrangements that we may enter
into in the future may include restrictive covenants that may limit
our ability to pay dividends.
Rights Upon Liquidation. In the event of our
liquidation, dissolution or winding up, the holders of our common
stock would be entitled to receive, after payment or provision for
payment of all our debts and liabilities and after we have paid, or
set aside for payment to, the holders of any stock having a
liquidation preference over the common stock, all of our assets
available for distribution. In the event of any liquidation,
dissolution or winding up of ACNB Bank, we, as a holder of ACNB
Bank’s capital stock, would be entitled to receive, after payment
or provision for payment of all debts and liabilities of the Bank
(including all deposit accounts and accrued interest thereon), all
assets of the Bank available for distribution.
Other Rights. The holders of our common stock have no
preemptive or conversion rights or other subscription rights. There
are no redemption or sinking fund provisions applicable to the
common stock. The rights, preferences, and privileges of holders of
our common stock are subject to, and may be adversely affected by,
the rights of holders of our preferred stock.
Shareholder Liability. All outstanding shares of our
common stock are fully paid and nonassessable. Under the
Pennsylvania Business Corporation Law of 1988, as amended,
shareholders generally are not personally liable for a
corporation’s acts or debts.
The Nasdaq Capital Market. Our common stock is quoted
on The Nasdaq Capital Market under the symbol “ACNB.” On
October 29, 2020, the closing price of our common stock was
$21.59 per share.
Anti-Takeover Articles of Incorporation and Bylaw
Provisions. Our articles of incorporation and bylaws
contain a number of provisions relating to corporate governance and
rights of shareholders that might discourage future takeover
attempts. As a result, shareholders who might desire to participate
in such transactions may not have an opportunity to do so. In
addition, these provisions may also render the removal of our board
of directors or management more difficult. Among other things,
these provisions:
|
· |
Require that 75% of the outstanding shares of our common stock
approve a merger, consolidation, liquidation, or dissolution of the
Company, which has not received prior board approval; |
|
· |
Empower our board of directors, without shareholder approval,
to issue one or more series of preferred stock the terms of which,
including voting power, are set by our board of directors; |
|
· |
Divide our board of directors into three classes serving
staggered three-year terms; |
|
· |
Require that shares with at least 75% of total voting power
approve the repeal or amendment of certain provisions of our
articles of incorporation; |
|
· |
Require advance notice of nominations for the election of
directors and the presentation of shareholder proposals at meetings
of shareholders; |
|
· |
Restrict the ability of shareholders to call special
meetings; |
|
· |
Eliminate cumulative voting in the election of directors;
and, |
|
· |
Permit the board to consider pertinent issues when opposing a
tender, or other offer, for ACNB’s securities. |
DESCRIPTION
OF PREFERRED STOCK
The following outlines the general provisions of the shares of
preferred stock, $2.50 par value per share, which we may issue from
time to time and in one or more series. The complete terms of the
preferred stock will be contained in the prospectus supplement and
in the applicable certificate of designation creating one or more
series of preferred stock that may be adopted by our board of
directors in the future. You should read the applicable certificate
of designation and the prospectus supplement, which will contain
additional information and which may update or modify some of the
information below.
General. Our articles of incorporation provide that
we may issue up to 20,000,000 shares of preferred stock, par value
$2.50 per share.
Our board of directors has the authority, without shareholder
consent, subject to certain limitations imposed by Pennsylvania
law, to issue preferred stock from time to time in one or more
series and to establish the number of shares to be included in each
such series, and to fix the voting rights, preferences, limitations
and special rights, if any, of the shares of each such series and
the qualifications or restrictions thereof. These rights,
preferences and restrictions will be fixed by a statement with
respect to shares relating to each particular series. As of the
date of this prospectus, we have no shares of preferred stock
issued and outstanding.
The issuance of preferred stock may have the effect of delaying,
deferring or preventing a change in control of ACNB without further
action by the shareholders and may adversely affect the voting and
other rights of the holders of common stock. The authority of the
board of directors with respect to each such series of preferred
stock includes, among others:
|
· |
the number of shares constituting the series and the
distinctive designation thereof; |
|
· |
preferential cumulative or noncumulative dividend rights; |
|
· |
conversion or exchange rights; |
|
· |
preferential liquidation, dissolution or winding up
rights; |
|
· |
general or specific voting rights; |
|
· |
generally to fix the other rights and privileges and any
qualifications, limitations or restrictions of such rights and
privileges of such series; and, |
|
· |
whether the preferred stock will be perpetual or of limited
duration. |
We may issue shares of, or rights to purchase shares of, one or
more series of our preferred stock that have been designated from
time to time, the terms of which might:
|
· |
adversely affect the voting or other rights evidenced by, or
amounts otherwise payable with respect to, the common stock or
other series of preferred stock; |
|
· |
discourage an unsolicited proposal to acquire us; or, |
|
· |
facilitate a particular business combination involving us. |
Terms Contained in the Prospectus Supplement. The
applicable prospectus supplement may contain the dividend, voting,
conversion, redemption, sinking fund, liquidation and other
designations, preferences, qualifications, limitations,
restrictions and special or relative rights granted to or imposed
upon any series of preferred stock. The applicable prospectus
supplement may describe the following terms of a series of
preferred stock:
|
· |
the designation of preferred stock and the number of shares of
preferred stock offered; |
|
· |
the initial public offering price at which we will issue the
preferred stock; |
|
· |
whether the shares will be listed on any securities
exchange; |
|
· |
the dividend rate or method of calculation, the payment dates
for dividends and the dates from which dividends will start to
accrue; |
|
· |
whether upon non-payment, the unpaid dividends accumulate or
are non-cumulative; |
|
· |
any redemption or sinking fund provisions; |
|
· |
the amount of liquidation preference per share; |
|
· |
any additional dividend, voting, conversion, redemption,
sinking fund, liquidation and other rights or restrictions;
and, |
|
· |
whether the preferred stock will be listed on a national
securities exchange or alternative trading system. |
The applicable prospectus supplement may also describe some of the
U.S. federal income tax consequences of the purchase and ownership
of the series of preferred stock.
DESCRIPTION
OF DEBT SECURITIES
We may issue senior debt securities or subordinated debt
securities. Senior debt securities will be issued under an
indenture, referred to as the “senior indenture,” between us and a
senior indenture trustee to be named in the applicable prospectus
supplement. Subordinated debt securities will be issued under a
separate indenture, referred to as the “subordinated indenture,”
between us and a subordinated indenture trustee to be named in the
applicable prospectus supplement. The senior indenture and the
subordinated indenture are sometimes collectively referred to in
this prospectus as the “indentures.” The indentures will be subject
to, and governed by, the Trust Indenture Act of 1939, as amended
(the “Trust Indenture Act”). A copy of the form of each of these
indentures is included as an exhibit to the registration statement
of which this prospectus is a part.
The following briefly describes the general terms and provisions of
the debt securities which may be offered by us and the indentures
governing them. The particular terms of the debt securities
offered, and the extent, if any, to which these general provisions
may apply to the debt securities so offered, will be described in
more detail in the applicable prospectus supplement relating to
those securities. The following descriptions of the indentures are
not complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the respective
indentures.
General Terms of Debt Securities. The indentures
permit us to issue the debt securities from time to time, without
limitation as to aggregate principal amount, and in one or more
series. The indentures also do not limit or otherwise restrict the
amount of other indebtedness which we may incur or other securities
which we or our subsidiaries may issue, including indebtedness
which may rank senior to the debt securities. Nothing in the
subordinated indenture prohibits the issuance of securities
representing subordinated indebtedness that is senior or junior to
the subordinated debt securities.
Unless we give you different information in the prospectus
supplement, the senior debt securities will be unsecured and
unsubordinated obligations and will rank equally with all of our
other unsecured and unsubordinated senior indebtedness. Payments on
the subordinated debt securities will be subordinated to the prior
payment in full of all of our senior debt, as described under
“Description of Debt Securities ¾Subordination” of this prospectus and
in the applicable prospectus supplement.
With respect to any debt securities that we issue, we will describe
in each prospectus supplement the following terms relating to a
series of debt securities:
|
· |
the title of the debt security; |
|
· |
the principal amount being offered, and if a series, the total
amount authorized and the total amount outstanding; |
|
· |
any limit on the amount that may be issued; |
|
· |
whether or not we will issue the series of debt securities in
global form, and if so, the terms and conditions relating thereto
and identification of the depository; |
|
· |
the principal amount due at maturity; |
|
· |
whether and under what circumstances, if any, we will pay
additional amounts on any debt securities held by a person who is
not a United States person for tax purposes, and whether we can
redeem the debt securities if we have to pay such additional
amounts; |
|
· |
whether repayment will be guaranteed and the terms of such
guaranty, if any, and the identity of the guarantor; |
|
· |
the annual interest rate, which may be fixed or variable, or
the method for determining the rate and the date interest will
begin to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for
determining such dates; |
|
· |
whether, upon non-payment, the interest accumulates or is
non-cumulative; |
|
· |
whether or not the debt securities will be convertible into
shares of our common stock, preferred stock, other indebtedness, or
warrants and, if so, the terms of such conversion; |
|
· |
whether or not the debt securities will be secured or unsecured
by some or all of our assets, and the terms of any secured
debt; |
|
· |
the terms of the subordination of any series of subordinated
debt; |
|
· |
the place where interest payments will be payable; |
|
· |
restrictions on transfer, sale, or other assignment, if
any; |
|
· |
our right, if any, to defer payment or interest and the maximum
length of any such deferral period; |
|
· |
the date, if any, after which and the conditions upon which,
and the price at which, we may, at our option, redeem the series of
debt securities pursuant to any optional or provisional redemption
provisions and the terms of those redemption provisions; |
|
· |
the date, if any, on which, and the price at which we are
obligated, pursuant to any mandatory sinking fund or analogous fund
provisions or otherwise, to redeem, or at the holder’s option to
purchase, the series of debt securities and the currency or
currency unit in which such purchase or redemption is payable; |
|
· |
whether the indenture will restrict our ability to pay
dividends, or will require us to maintain any asset ratios,
reserves, or other specified financial metrics; |
|
· |
whether we will be restricted from incurring any additional
indebtedness, issuing additional securities, or entering into a
merger, consolidation, or sale of our business; |
|
· |
a discussion of any material or special United States federal
income tax considerations applicable to the debt securities; |
|
· |
information describing any book-entry features; |
|
· |
any provisions for payment of additional amounts for
taxes; |
|
· |
whether the debt securities are to be offered at a price such
that they will be deemed to be offered at an “original issue
discount” as defined in paragraph (a) of Section 1273 of
the Internal Revenue Code of 1986, as amended; |
|
· |
the denominations in which we will issue the series of debt
securities, if other than denominations of $1,000 and any integral
multiple thereof; |
|
· |
whether we and/or the indenture trustee may change an indenture
without the consent of any holders; |
|
· |
the form of debt security and how it may be exchanged and
transferred; |
|
· |
description of the indenture trustee and paying agent, and the
method of payments; and, |
|
· |
any other specified terms, preferences, rights or limitations
of, or restrictions on, the debt securities and any terms that may
be required by us or advisable under applicable laws or
regulations. |
Terms of Indenture. We summarize below the material
terms of the form of indenture or indicate which material terms
will be described in the applicable prospectus supplement. The
indenture:
|
· |
does not limit the amount of debt securities that we may
issue; |
|
· |
allows us to issue debt securities in one or more series; |
|
· |
does not require us to issue all of the debt securities of a
series at the same time; |
|
· |
allows us to reopen a series to issue additional debt
securities without the consent of the holders of the debt
securities of such series; and, |
|
· |
provides that the debt securities will be unsecured, except as
may be set forth in the applicable prospectus supplement. |
Ranking of Debt Securities; Holding Company
Structure. Payment of the principal of, premium, if any,
and interest on senior debt securities will rank on a parity with
all of our other unsecured and unsubordinated senior debt.
Payment of the principal of, premium, if any, and interest on
subordinated debt securities will be junior in right of payment to
the prior payment in full of all of our senior debt securities. We
will state in the applicable prospectus supplement relating to any
subordinated debt securities the subordination terms of the
securities as well as the aggregate amount of outstanding debt, as
of the most recent practicable date, that by its terms would be
senior to those subordinated debt securities. As of June 30,
2020, the Company had no outstanding debt that by its terms would
be senior to any subordinated debt securities that may be issued
under the subordinated indenture. The indentures do not limit the
issuance of additional senior debt.
As of September 30, 2020, the Company had outstanding
$6,186,000 principal amount of Junior Subordinated Debt Securities
due December 15, 2036 and $5,155,000 principal amount of
Junior Subordinated Debt Securities due June 23, 2035.
The debt securities will be our exclusive obligations. We are a
financial holding company and substantially all of our consolidated
assets are held by our subsidiary, ACNB Bank. Accordingly, our cash
flows and our ability to service our debt, including the debt
securities, are dependent upon the results of operations of ACNB
Bank and the distribution of funds by ACNB Bank to us. Various
statutory and regulatory restrictions, however, limit directly or
indirectly the amount of dividends ACNB Bank can pay, and also
restrict ACNB Bank from making investments in or loans to us.
Because we are a financial holding company, the debt securities
will be effectively subordinated to all existing and future
liabilities, including indebtedness, customer deposits, trade
payables, guarantees and lease obligations, of ACNB Bank.
Therefore, our rights and the rights of our creditors, including
the holders of the debt securities, to participate in the assets of
any subsidiary upon that subsidiary’s liquidation or reorganization
will be subject to the prior claims of the subsidiary’s creditors
and, if applicable, its depositors, except to the extent that we
may ourselves be a creditor with recognized claims against the
subsidiary, in which case our claims would still be effectively
subordinate to any security interest in, or mortgages or other
liens on, the assets of ACNB Bank and would be subordinate to any
indebtedness of ACNB Bank senior to that held by us. If a receiver
or conservator were appointed for ACNB Bank, the Federal Deposit
Insurance Act recognizes a priority in favor of the holders of
withdrawable deposits (including the FDIC as subrogee or
transferee) over general creditors. Claims for customer deposits
would have a priority over any claims that we may ourselves have as
a creditor of ACNB Bank. The indentures do not limit the amount of
indebtedness or other liabilities that we and ACNB Bank may
incur.
Subordination. The subordinated debt securities will
be subordinated in right of payment to all “senior indebtedness,”
as defined in the subordinated indenture. In certain circumstances
relating to our liquidation, dissolution, receivership,
reorganization, insolvency or similar proceedings:
|
· |
the holders of all senior indebtedness will first be entitled
to receive payment of principal and accrued but unpaid interest
before the holders of the subordinated debt securities will be
entitled to receive any payment of principal or accrued but unpaid
interest on the subordinated debt securities; and, |
|
· |
until the senior indebtedness is paid in full, any
distributions to which the holders of subordinated debt would be
entitled shall be made to holders of senior indebtedness, except
that holders of subordinated debt may receive securities that are
subordinated to senior indebtedness. |
In addition, we may make no payment on the subordinated debt
securities in the event that any default occurs with respect to any
senior indebtedness permitting the holders of the senior
indebtedness to accelerate the maturity of the senior indebtedness,
if either of the following occur:
|
· |
notice of such default has been given to the Company and to the
indenture trustee, provided that judicial proceedings shall be
commenced in respect of such default within 180 days in the case of
a default in payment of principal or interest and within 90 days in
the case of any other default after the giving of such notice, and
provided further that only one such notice shall be given in any
twelve-month period; or, |
|
· |
judicial proceedings are pending in respect of such
default. |
By reason of this subordination in favor of the holders of senior
indebtedness, in the event of our insolvency, our creditors who are
not holders of senior indebtedness or the subordinated debt
securities may recover less, proportionately, than holders of
senior indebtedness and may recover more proportionately, than
holders of the subordinated debt securities.
Unless otherwise specified in the prospectus supplement relating to
the particular series of subordinated debt securities, “senior
indebtedness” includes (i) the principal and any premium or
interest for money borrowed or purchased by the Company;
(ii) the principal and any premium or interest for money
borrowed or purchased by another person and guaranteed by the
Company; (iii) any deferred obligation for the payment of the
purchase price of property or assets evidenced by a note or similar
instrument or agreement; (iv) an obligation arising from
direct credit substitutes; and (v) any obligation associated
with derivative products such as interest and foreign exchange rate
contracts, commodity contracts and similar arrangements; in each
case, whether outstanding on the date the subordinated indenture
becomes effective, or created, assumed or incurred after that date.
Senior indebtedness excludes any indebtedness that:
(a) expressly states that it is junior to, or ranks equally in
right of payment with, the subordinated debt securities; or
(b) is identified as junior to, or equal in right of payment
with, the subordinated debt securities in any board resolution or
in any supplemental indenture.
The subordinated indenture does not limit or prohibit the
incurrence of additional senior indebtedness, which may include
indebtedness that is senior to the subordinated debt securities,
but subordinate to our other obligations. Any prospectus supplement
relating to a particular series of subordinated debt securities
will set forth the aggregate amount of our indebtedness senior to
the subordinated debt securities as of the most recent practicable
date.
The prospectus supplement may further describe the provisions, if
any, which may apply to the subordination of the subordinated debt
securities of a particular series.
Conversion or Exchange Rights. Our debt securities
may be convertible into or exchangeable for shares of our common
stock, shares of our preferred stock (which may be represented by
depositary shares), other indebtedness of the Company, or warrants
for our common stock, preferred stock or debt securities of the
Company. If our debt securities are convertible into or
exchangeable for other securities, the terms of conversion or
exchange will be stated in the applicable prospectus supplement.
The terms will include the following:
|
· |
the initial conversion or exchange price, rate or ratio; |
|
· |
the conversion or exchange period; |
|
· |
the manner in which such conversion or exchange shall be
affected; |
|
· |
applicable adjustments, if any; and, |
|
· |
any other provision in addition to or in lieu of those
described in the indentures. |
The securities into which our debt securities are convertible or
exchangeable are limited to those registered with the SEC on the
registration statement of which this prospectus is a part.
Absence of Limitation on Indebtedness. The indentures
do not limit the amount of indebtedness, guarantees or other
liabilities that we and our subsidiaries may incur and will not
prohibit us or our subsidiaries from creating or assuming liens on
our properties, including the capital stock of our
subsidiaries.
Events of Default. Unless otherwise indicated in the
applicable prospectus supplement, if an event of default (other
than default due to bankruptcy or insolvency) occurs and is
continuing for any series of senior or subordinated debt
securities, the indenture trustee or the holders of not less than
25% in principal amount of the outstanding senior or subordinated
debt securities of that series may declare the principal of all
senior or subordinated debt securities of that series, or any
lesser amount provided for in the indenture relating to the senior
or subordinated debt securities of that series, to be immediately
due and payable. Upon any such declaration, the principal or lesser
amount, together with any accrued and unpaid interest, will become
immediately due and payable.
Unless otherwise indicated in the applicable prospectus supplement,
if an event of default due to bankruptcy or insolvency occurs, then
the principal amount of all senior or subordinated debt securities
of that series, together with any accrued and unpaid interest, will
become immediately due and payable, without any declaration or
other action on the part of the indenture trustee or any holder of
such senior or subordinated debt securities.
At any time after a declaration of acceleration with respect to any
series of senior or subordinated debt securities has been made and
before a judgment or decree for payment of the money due has been
obtained by the applicable indenture trustee, the holders of at
least a majority in principal amount of the outstanding debt
securities of that series may rescind and annul the declaration of
acceleration and its consequences, provided that all payments due,
other than those due as a result of acceleration, have been made
and all events of default have been cured or waived.
The holders of at least a majority in principal amount of any
series of outstanding debt securities may waive any past default
with respect to that series, except a default:
|
· |
in the payment of principal and any premium or interest on or
additional amounts payable in respect of any debt security of that
series; or, |
|
· |
in respect of a covenant or provision which cannot be modified
or amended without the consent of the holder of each outstanding
debt security of the series of debt securities affected. |
The holders of a majority in principal amount of the outstanding
debt securities of a series may direct the time, method, and place
of conducting any proceeding for any remedy available to the
applicable indenture trustee or exercising any trust or power
conferred on the indenture trustee with respect to debt securities
of that series, provided that (1) such direction is not in
conflict with any rule of law or the applicable indenture,
(2) the trustee may take any other action it deems proper
which is not inconsistent with such direction, and (3) such
direction is not unduly prejudicial to the rights of the other
holders of the series of debt securities. The trustee is under no
obligation to exercise any of the rights or powers vested in it at
the direction of the holders unless the holders have offered
security or indemnity to the trustee against the costs, expenses,
and liabilities which it might incur in complying with such request
or direction.
A holder of any debt security of any series will have the right to
institute a proceeding with respect to the applicable indenture or
for any remedy under the indenture, if:
|
· |
the holder has previously given written notice to the trustee
of a continuing event of default; |
|
· |
the holders of at least 25% in principal amount of the
outstanding debt securities of the series have made written request
to the trustee to institute proceedings in respect of such event of
default in its own name as trustee; |
|
· |
such holder or holders have offered indemnity reasonably
satisfactory to the trustee against the costs, expenses and
liabilities to be incurred in compliance with such request; |
|
· |
the trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and, |
|
· |
no direction inconsistent with such written request has been
given to the trustee during such 60-day period by the holders of a
majority in principal amount of the outstanding debt securities of
such series. |
However, the holder of any debt security has the right to receive
payment of the principal of (and premium, if any) and interest on,
and any additional amount in respect of, such debt security and to
institute suit for the enforcement of any such payment.
The Company is required to deliver an annual statement to the
trustee as to the performance of the Company’s obligations under
the indentures and as to any default in that performance of which
we are aware. We are also required to notify the trustee of any
event which, after notice or lapse of time or both, would become an
event of default within five days after the occurrence of such
event.
Governing Law. Unless indicated otherwise in the
applicable prospectus supplement, the indentures and the debt
securities will be governed by, and construed in accordance with,
the laws of the State of New York.
DESCRIPTION OF
WARRANTS
The complete terms of the warrants will be contained in the
applicable warrant agreement and warrant. These documents have been
or will be included or incorporated by reference as exhibits to the
registration statement of which this prospectus is a part. You
should read the warrant and warrant agreement. You should also read
any prospectus supplement applicable to the issuance of warrants,
which will contain additional information and which may update or
change some of the information below.
We may issue warrants for the purchase of common stock, preferred
stock and/or debt securities in one or more series. If we offer
warrants, we will describe the terms in a prospectus supplement and
any free writing prospectus. Warrants may be offered independently,
together with other securities offered by any prospectus
supplement, or through a dividend or other distribution to
shareholders and may be attached to, or separate from, other
securities. Warrants may be issued under a written warrant
agreement to be entered into between us and the holder or
beneficial owner, or under a written warrant agreement with a
warrant agent specified in a prospectus supplement. A warrant agent
would act solely as our agent in connection with the warrants of a
particular series and would not assume any obligation or
relationship of agency or trust for or with any holders or
beneficial owners of those warrants.
The following are some of the terms relating to a series of
warrants that could be described in a prospectus supplement:
|
· |
aggregate number of warrants; |
|
· |
price or prices at which the warrants will be issued; |
|
· |
designation, number, aggregate principal amount, denominations
and terms of the securities that may be purchased on exercise of
the warrants; |
|
· |
date, if any, on and after which the warrants and the common
stock or debt securities offered for purchase or exchange by the
warrants, if any, will be separately transferable; |
|
· |
purchase price for each security purchasable on exercise of the
warrants; |
|
· |
dates on which the right to purchase certain securities upon
exercise of the warrants will begin and end; |
|
· |
minimum or maximum number of securities that may be purchased
at any one time upon exercise of the warrants; |
|
· |
anti-dilution provisions or other adjustments to the exercise
price of the warrants; |
|
· |
terms of any right that we may have to redeem the
warrants; |
|
· |
effect of any merger, consolidation, sale or other transfer of
our business on the warrants and the applicable warrant
agreement; |
|
· |
name and address of the warrant agent, if any; |
|
· |
information with respect to book-entry procedures; |
|
· |
a discussion of material U.S. federal income tax
considerations; |
|
· |
other material terms, including terms relating to
transferability, exchange, exercise, cancellation or amendments of
the warrants; and, |
|
· |
whether the warrants will be listed on a national securities
exchange or alternative trading system. |
Until any warrants to purchase our securities are exercised,
holders of the warrants will not have any rights of holders of the
securities into which they may be exercised.
DESCRIPTION OF
UNITS
The complete terms of the units will be contained in the unit
agreement and any related document applicable to any units. These
documents have been or will be included or incorporated by
reference as exhibits to the registration statement of which this
prospectus is a part. You should read the unit agreement and any
related document. You should also read the prospectus supplement,
which will contain additional information and which may update or
change some of the information below.
We may issue units, in one or more series, consisting of common
stock, preferred stock, debt securities and/or warrants for the
purchase of common stock, preferred stock and/or debt securities in
any combination. If we offer units, we will describe the terms in a
prospectus supplement and any free writing prospectus. Units may be
issued under a written unit agreement to be entered into between us
and the holder or beneficial owner, or we could issue units under a
written unit agreement with a unit agent specified in a prospectus
supplement. A unit agent would act solely as our agent in
connection with the units of a particular series and would not
assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of those units.
Each unit will be issued so that the holder of the unit is also the
holder of each security included in the unit. Thus, the holder of a
unit will have the rights and obligations of a holder of each
included security.
The following are some of the unit terms that could be described in
a prospectus supplement:
|
· |
aggregate number of units; |
|
· |
price or prices at which the units will be issued; |
|
· |
designation and terms of the units and of the securities
comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately; |
|
· |
effect of any merger, consolidation, sale or other transfer of
our business on the units and the applicable unit agreement; |
|
· |
name and address of the unit agent; |
|
· |
information with respect to book-entry procedures; |
|
· |
a discussion of material U.S. federal income tax
considerations; and, |
|
· |
other material terms, including terms relating to
transferability, exchange, exercise or amendments of the
units. |
The provisions described in this section, as well as those
described under “Description of Common Stock,” “Description of
Preferred Stock,” “Description of Debt Securities” and “Description
of Warrants” will apply to each unit and to any common stock,
preferred stock, debt security or warrant included in each unit,
respectively.
Unless otherwise provided in the applicable prospectus supplement,
the unit agreements will be governed by the laws of the
Commonwealth of Pennsylvania. The unit agreement under which a unit
is issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any time
before a specified date. We will file as an exhibit to a filing
with the SEC that is incorporated by reference into this prospectus
the forms of the unit agreements containing the terms of the units
being offered. The description of units in any prospectus
supplement will not necessarily describe all of the terms of the
units in detail. You should read the applicable unit agreements for
a complete description of all of the terms.
PLAN OF
DISTRIBUTION
We may sell the securities from time to time pursuant to public
offerings, negotiated transactions, block trades or a combination
of these methods. We may sell the securities to or through an
underwriter or group of underwriters managed or co-managed by one
or more underwriters, or to or through dealers, through agents,
directly to one or more investors or through a combination of such
methods of sale.
We may distribute securities from time to time in one or more
transactions:
|
· |
at a fixed price or prices which may be changed; |
|
· |
at market prices prevailing at the time of sale; |
|
· |
at prices related to such prevailing market prices; or, |
Each time we sell securities we will file a prospectus supplement
will describe the method of distribution of the securities and any
applicable restrictions.
The prospectus supplement or supplements will describe the terms of
the offering of the securities, including:
|
· |
the name or names of the underwriters, placement agents or
dealers, if any; |
|
· |
the purchase price of the securities and the amount of proceeds
we will receive from the sale; |
|
· |
any over-allotment options under which underwriters may
purchase additional securities from us; |
|
· |
any agency fees or underwriting discounts and other items
constituting agents’ or underwriters’ compensation; |
|
· |
any discounts or concessions allowed or reallowed to be paid to
dealers (which may be changed at any time); and, |
|
· |
any national securities exchange or alternative trading system
on which the securities may be listed or quoted. |
Unless stated otherwise in the applicable prospectus supplement,
the obligations of any underwriter to purchase securities will be
subject to certain conditions set forth in the applicable
underwriting agreement, and generally the underwriters will be
obligated to purchase all of the securities if they purchase any of
the securities. If underwriters are used in the sale of any
securities, the securities will be acquired by the underwriters for
their own account and may be resold from time to time in one or
more transactions described above. The securities may be either
offered to the public through underwriting syndicates represented
by managing underwriters, or directly by underwriters. Generally,
the underwriters’ obligations to purchase the securities will be
subject to certain conditions precedent. If a dealer is used in a
sale, we may sell the securities to the dealer as principal. The
dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale.
We or our agents may solicit offers to purchase securities from
time to time. Unless stated otherwise in the applicable prospectus
supplement, any agent will be acting on a best efforts basis for
the period of its appointment.
In connection with the sale of securities, underwriters or agents
may receive compensation (in the form of fees, discounts,
concessions or commissions) from us or from purchasers of
securities for whom they may act as agents. Underwriters may sell
securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of securities may be deemed to be
“underwriters,” as that term is defined in the Securities Act, and
any discounts or commissions received by them from us and any
profits on the resale of the securities by them may be deemed to be
underwriting discounts and commissions under the Securities Act. We
will identify any such underwriter or agent, and we will describe
any compensation we may pay to them, in the related prospectus
supplement.
Underwriters, dealers and agents may be entitled under agreements
with us to indemnification against, and contribution toward,
certain civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the
underwriters, dealers or agents may make with respect to these
liabilities.
If stated in the applicable prospectus supplement, we may authorize
underwriters, dealers or agents to solicit offers by certain
investors to purchase securities from us at the public offering
price set forth in the prospectus supplement under delayed delivery
contracts providing for payment and delivery on a specified date in
the future. These contracts will be subject only to those
conditions set forth in the applicable prospectus supplement and
the applicable prospectus supplement will set forth the commission
payable for solicitation of these contracts.
The securities we may offer, other than common stock, will be new
issues of securities with no established trading market. No
assurance can be given as to the liquidity of the trading market
for any of our securities. Any underwriter may make a market in
these securities; however, no underwriter will be obligated to do
so, and any underwriter may discontinue any market making activity
at any time, without prior notice.
Any underwriter may engage in over-allotment, stabilizing
transactions, short-covering transactions and penalty bids in
accordance with Regulation M under the Exchange Act. Over-allotment
involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum price. Syndicate-covering or other short-covering
transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after
the distribution is completed, to cover short positions. Penalty
bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are
purchased in a stabilizing or covering transaction to cover short
positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of these activities at any
time.
Any underwriters who are qualified market makers on Nasdaq (or any
exchange or quotation system on which our securities are listed)
may engage in passive market making transactions in our common
stock, preferred stock, debt securities and warrants, as
applicable, on Nasdaq in accordance with Rule 103 of
Regulation M of the Exchange Act, during the business day prior to
the pricing of the offering, before the commencement of offers or
sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as
passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent
bid for such security; if all independent bids are lowered below
the passive market maker’s bid, however, the passive market maker’s
bid must then be lowered when certain purchase limits are exceeded.
Passive market making may stabilize the market price of the
securities at a level above that which might otherwise prevail in
the open market and, if commenced, may be discontinued at any
time.
Certain of the underwriters or agents and their associates may
engage in transactions with and perform services for us or our
affiliates in the ordinary course of their respective
businesses.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement,
the validity of the securities offered hereby will be passed upon
by Bybel Rutledge LLP, Lemoyne, Pennsylvania. If the validity of
the securities offered hereby in connection with offerings made
pursuant to this prospectus are passed upon by counsel for
underwriters, dealers or agents, if any, such counsel will be named
in the prospectus supplement related to such offering.
EXPERTS
The consolidated financial statements of ACNB Corporation and its
subsidiaries as of December 31, 2019 and 2018, and for each of
the two years in the period ended December 31, 2019 and the
effectiveness of its internal control over financial reporting as
of December 31, 2019 incorporated in this prospectus by
reference from the ACNB Corporation Annual Report on Form 10-K for
the year ended December 31, 2019 have been audited by RSM US LLP,
an independent registered public accounting firm as stated in their
reports thereon, incorporated herein by reference and have been
incorporated in this prospectus and registration statement in
reliance upon such reports and given upon the authority of such
firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Exchange Act
and file annual, quarterly and current reports, proxy statements
and other information with the SEC. SEC filings are available at
the SEC’s web site at http://www.sec.gov and on our website at
https://investor.acnb.com. Information on, or that can be
accessible through, our website does not constitute a part of, and
is not incorporated by reference in, this prospectus.
This prospectus, which is a part of a registration statement on
Form S-3 that we have filed with the SEC under the Securities
Act, omits certain information set forth in the registration
statement. Accordingly, for further information, you should refer
to the registration statement and its exhibits on file with the
SEC. Furthermore, statements contained in this prospectus
concerning any document filed as an exhibit are not necessarily
complete and, in each instance, we refer you to the copy of such
document filed as an exhibit to the registration statement.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” certain information
that we file with it. Incorporation by reference allows us to
disclose important information to you by referring you to other
documents. The information incorporated by reference is an
important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this
information. We filed a registration statement on Form S-3
under the Securities Act with the SEC with respect to the
securities being offered pursuant to this prospectus. This
prospectus omits certain information contained in the registration
statement, as permitted by the SEC. You should refer to the
registration statement, including the exhibits, for further
information about us and the securities being offered pursuant to
this prospectus. Statements in this prospectus regarding the
provisions of certain documents filed with, or incorporated by
reference in, the registration statement are not necessarily
complete and each statement is qualified in all respects by that
reference. Copies of all or any part of the registration statement,
including the documents incorporated by reference or the exhibits,
may be obtained as explained above in “Where You Can Find More
Information.” The documents we are incorporating by reference
are:
|
· |
our Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 2020, filed with the SEC on May 1, 2020, June 30,
2020, filed with the SEC on July 31, 2020, and
September 30, 2020, filed with the SEC on October 30, 2020; |
|
· |
our Current Reports on Form 8-K filed with the SEC on
January 13, 2020, February 28, 2020, April 8, 2020, April 27, 2020, May 7, 2020, June 10, 2020, and June 19, 2020; and, |
In addition, we also incorporate by reference into this prospectus
all documents (other than current reports furnished under Item 2.02
or Item 7.01 of Form 8-K and exhibits filed in such forms that
are related to such items unless such Form 8-K expressly
provides to the contrary) that are filed by us pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
(i) after the date of the initial filing of the Registration
Statement of which this prospectus forms a part and prior to
effectiveness of the registration statement, or (ii) after the
date of this prospectus but prior to the termination or completion
of this offering.
Any statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference into this
prospectus will be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this
prospectus or any other subsequently filed document that is deemed
to be incorporated by reference into this prospectus modifies or
supersedes the statement. Any statement so modified or superseded
will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We will furnish without charge to you, upon written or oral
request, a copy of any or all of the documents incorporated by
reference, including exhibits to these documents. You should direct
any requests for documents to ACNB Corporation, 16 Lincoln Square,
P.O. Box 3129, Gettysburg, PA 17325, Telephone Number (717)
334-3161, Attention: Lynda L. Glass, Executive Vice
President/Secretary & Chief Governance Officer.
You should rely only on the information in our prospectus, any
applicable prospectus supplement, any related free writing
prospectus and the documents that are incorporated by reference
therein. We have not authorized anyone else to provide you with
different information. We are not offering these securities in any
state where the offer is prohibited by law. You should not assume
that the information in this prospectus, any applicable prospectus
supplement, any related free writing prospectus or any incorporated
document is accurate as of any date other than the date of the
document.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of the estimated fees and
expenses in connection with the issuance and distribution of the
securities registered hereby:
| SEC
Registration Fee |
$10,910.00 |
| Accounting fees and
expenses |
$ * |
| Legal fees and
expenses |
$ * |
| Printing and mailing
expenses |
$ * |
| Miscellaneous |
$ * |
| Total |
$ * |
|
* |
These fees depend on the securities offered and the number of
issuances and cannot be determined at this time. |
Item 15. Indemnification of Directors and Officers.
Sections 1741 through 1743 of the Pennsylvania Business Corporation
Law of 1988, as amended (the “BCL”), provide that a business
corporation may indemnify directors and officers against
liabilities they may incur in such capacities provided certain
standards are met, including good faith and the belief that the
particular action is in the best interests of the corporation. In
general, this power to indemnify does not exist in the case of
actions against a director or officer by or in the right of the
corporation if the person entitled to indemnification shall have
been adjudged to be liable to the corporation unless and only to
the extent a court determines that the person is fairly and
reasonably entitled to indemnification. A corporation is required
to indemnify directors and officers against expenses they may incur
in defending actions against them in such capacities if they are
successful on the merits or otherwise in the defense of such
actions. Section 1746 of the BCL provides that the foregoing
provisions shall not be deemed exclusive of any other rights to
which a person seeking indemnification may be entitled under, among
other things, any bylaw provision, provided that no indemnification
may be made in any case where the act or failure to act giving rise
to the claim for indemnification is determined by a court of
competent jurisdiction to have constituted willful misconduct or
recklessness. Section 1747 of the BCL authorizes a corporation
to purchase insurance for directors and other representatives. The
foregoing statement is subject to the detailed provisions of
Sections 1741 through 1750 of the BCL.
The Registrant’s bylaws provide for the indemnification of
directors and officers to the extent provided by the BCL. The
Registrant’s bylaws provide indemnification or reimbursement for
reasonable expenses actually incurred by directors or officers.
However, indemnification or reimbursement shall be provided only
when a director or officer acted in good faith and reasonably
believed such actions were in the best interests of the Registrant.
Directors and officers are also insured against certain liabilities
for their actions, as such, by an insurance policy covering the
Registrant and its subsidiaries.
Any underwriting agreement that we might enter into will provide
for indemnification of the underwriters by us, our directors, our
officers who sign the registration statement and our controlling
persons for some liabilities, including liabilities arising under
the Securities Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Registrant, we have been informed that, in the
opinion of the SEC, any such indemnification is against public
policy as expressed in the Securities Act and is therefore
unenforceable.
Item 16. Exhibits.
|
* |
To be filed, if necessary, by amendment or as an exhibit to a
report filed under the Exchange Act and incorporated by
reference. |
|
** |
To be
filed separately pursuant to Section 305(b)(2) of the
Trust Indenture Act of 1939. |
Item 17. Undertakings.
|
(a) |
The
undersigned Registrant hereby undertakes: |
|
(1) |
To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement: |
|
(i) |
To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; |
|
(ii) |
To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration
statement; |
|
(iii) |
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; |
Provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the SEC by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration
statement.
|
(2) |
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. |
|
(3) |
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering. |
|
(4) |
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser: |
|
(i) |
If the registrant is relying on Rule 430B: |
|
(A) |
Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and |
|
(B) |
Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date. |
|
(ii) |
If the registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of a registration
statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is
first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first use. |
|
(5) |
That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this Registration Statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser: |
|
(i) |
Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant
to Rule 424; |
|
(ii) |
Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned Registrant or used or referred
to by the undersigned Registrant; |
|
(iii) |
The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and |
|
(iv) |
Any other communication that is an offer in the offering made
by the undersigned Registrant to the purchaser. |
|
(b) |
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the Registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof. |
|
(c) |
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue. |
|
(d) |
The
undersigned Registrant hereby undertakes that: |
|
(1) |
For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be
part of this registration statement as of the time it was declared
effective; and |
|
(2) |
For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. |
|
(e) |
The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of section 310 of the
Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under section
305(b)(2) of the Act. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this Registration Statement on
Form S-3 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Borough of Gettysburg,
Commonwealth of Pennsylvania, on October 30, 2020.
| |
ACNB
CORPORATION |
| |
|
|
| |
By: |
/s/ James P. Helt
|
| |
|
James P. Helt |
| |
|
President and Chief Executive
Officer |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James P. Helt, Lynda L.
Glass and David W. Cathell, and each of them, his or her true and
lawful attorney-in-fact, as agent with full power of substitution
and resubstitution for him or her and in his or her name, place and
stead, in any and all capacities, to sign any or all amendments to
this registration statement and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such
attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully and to all intents and
purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
|
Name
|
Capacity
|
Date
|
|
Alan J. Stock
|
Chairman of the Board and Director
|
October 30, 2020
|
| |
|
|
|
James P. Helt
|
President and Chief Executive Officer and Director (Principal
Executive Officer)
|
October 30, 2020
|
| |
|
|
|
David W. Cathell
|
Executive Vice President, Treasurer and Chief Financial Officer
(Principal Financial Officer)
|
October 30, 2020
|
| |
|
|
|
Kimberly S. Chaney
|
Director
|
October 30, 2020
|
| |
|
|
|
Frank Elsner, III
|
Director
|
October 30, 2020
|
|
Todd L. Herring
|
Director
|
October 30, 2020
|
| |
|
|
|
Scott L. Kelley
|
Director
|
October 30, 2020
|
| |
|
|
|
James J. Lott
|
Director
|
October 30, 2020
|
| |
|
|
|
Donna M. Newell
|
Director
|
October 30, 2020
|
| |
|
|
|
Daniel W. Potts
|
Director
|
October 30, 2020
|
| |
|
|
|
Thomas A. Ritter
|
Director
|
October 30, 2020
|
| |
|
|
|
Marian B. Schultz
|
Director
|
October 30, 2020
|
| |
|
|
/s/ D. Arthur Seibel, Jr.
D. Arthur Seibel, Jr.
|
Director
|
October 30, 2020
|
| |
|
|
|
David L. Sites
|
Director
|
October 30, 2020
|
| |
|
|
|
James E. Williams
|
Director
|
October 30, 2020
|
